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A.K. SIKRI, J.

Leave granted.

2) National Highway Authority of India (NHAI) had entered into agreement dated July 19, 2007 (hereinafter referred to as the ‘Concession Agreement’) whereby it had awarded a contract to M/s. T.K. Toll Road Pvt. Ltd. (hereinafter referred to as the ‘Concessionaire’) for undertaking, inter alia, the design, engineering, financing, procurement, construction, operation and (arising out of SLP(C) No. 29519 of 2015)  maintenance of the Project Highway on Build Operate and Transfer (BOT) basis on the National Highway 67 connecting Coimbatore and Nagapattinam. The Concessionaire vide EPC agreement (Engineering, Procurement and Construction Agreement) dated January 31, 2008 awarded the said work on a fixed lump sum turnkey basis to M/s. Utility Energytech and Engineers Private Limited (hereinafter referred to as the ‘EPC Contractor’). EPC Contractor, in turn, executed a Construction Agreement dated March 14, 2008 with the respondent herein (M/s. Techtrans Construction India Pvt. Ltd.) to execute the works as per terms and conditions entailed in that agreement. Clause 8 of that agreement permitted the respondent to sub-contract the structural work. Pursuant thereto, the respondent floated a tender for sub-contracting their work in which the appellant also submitted its bid and was ultimately awarded the said work by the respondent vide agreement dated July 29, 2009.

5) It may be clarified at this juncture that Agreement dated July 29, (arising out of SLP(C) No. 29519 of 2015)  2009 entered into between the appellant and the respondent does not contain any arbitration clause. There is no independent arbitration agreement between the parties either. However, case set up by the appellant was that this Agreement dated July 29, 2009 entered into between the parties, by implication, incorporates the arbitration agreement that is contained in the Agreement dated March 14, 2008 that was entered into between the EPC Contractor and the respondent.

6) Indubitably, clause 45 of the Agreement dated March 14, 2008 between EPC Contractor and the respondent contains procedure for resolution of disputes and sub-clause (3) thereof refers to arbitration procedure. In case of any dispute, as per clause 45.1, first attempt is for ‘amicable resolution’. Thereafter, under clause 45.2, process of ‘mediation’ is to be resorted to and if that also fails then the ‘arbitration procedure’ is provided. Clause 45.3 and clause 45.4 read as under:

“9.10. For items which are not mentioned in this Agreement Clauses, terms and conditions of Agreement between Contractor and EPC Concessionaire will be applicable.'' (arising out of SLP(C) No. 29519 of 2015)

8) It is, thus, argued by the learned counsel for the appellant that as per the aforesaid clause, when the appellant had agreed and undertaken to execute the work as per contract specified in the contract document and the said clause also specifically provided that all the special conditions of the contract, specifications etc. relating to the works and qualities specified in the relevant agreement between the construction contractor and the employer are binding on the respondent, the clause relating to arbitration agreement i.e. 45 entered into between EPC Contractor and the respondent also became applicable by incorporation. It was submitted that the aforesaid clause read with clause 9.10 of Annexure 1 which categorically mentions that in respect of items which are not mentioned in the Agreement clauses, terms and conditions of the Agreement between the Contractor and EPC Concessionaire will be applicable, would also lead to same result.